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Malaysia’s draconian National Security Council Bill becomes law

The Malaysian government has gazetted a new piece of legislation that gives sweeping powers to a security council headed by the Prime Minister, Najib Razak.

Under the new Act, the security council will be empowered to designate security areas in which the authorities will be able to carry out arrests, searches, and seizures without a warrant, and impose curfews.

The Bill was pushed through parliament very rapidly and has now been gazetted without the assent of the king (the Yang Di-Pertuan Agong) and without taking into consideration any of the changes suggested by the country’s Council of Rulers.

However, lawyers say the Act is currently dormant as no enforcement date was given when it was gazetted. For implementation, another government gazette would be required that specifies the date on which the Act would come into force.

The National Security Council (NSC) Bill – which now becomes the NSC Act – has been described by former ambassador Dennis Ignatius (pictured left) as “nothing less than a prelude to dictatorship, the final step in the ‘Zimbabweization’ of Malaysia”.

The chief executive of the Institute for Democracy and Economic Affairs (IDEAS) think-tank, Wan Saiful Wan Jan, said yesterday (Friday): “The prime minister now possesses at his disposal a concentration and breadth of power which has no historical precedence in Malaysia. We are truly in uncharted waters.”

The president of Malaysia’s National Human Rights Society (HAKAM), Ambiga Sreenevasan (pictured left), says the government’s move to ignore the Conference of Rulers’ concerns should trigger alarm bells.

“In this exercise, the government has behaved as if they are accountable to no-one, neither the Rulers, nor the people. The fact that there were no amendments to the Bill is proof of this. If this is not a dictatorship, then what is?”

Gazetting without the assent of the king is permitted under Article 66(4A) of Malaysia’s federal constitution, but lawyers believe this is the first time a Malaysian government has made use of this article to pass legislation.

If the king has not expressed his agreement to a Bill thirty days after it is passed in parliament, his assent is considered to have been given and the Bill can be gazetted and become law.

It is stated in the federal government gazette of June 7 that royal assent was considered to have been given to the NSC Bill on February 18.

The Bill was passed by the lower house, the Dewan Rakyat, on December 3 and was rubber stamped by the Senate (the Dewan Negara) on December 22.

MPs were allowed minimal time for debate and there was no opportunity for civil society input, and senators voted in favour of the legislation without making any amendments.

‘Act of defiance against the Council of Rulers’

After the vote in the Dewan Rakyat (lower house), a campaign against the Bill was launched under the banner #TakNakDiktator (No to dictatorship).¹

Critics of the Act say it places too much power in Najib’s hands and opens the way to further abuses of human rights in a country where there is already heavy suppression of dissent.

The #TakNakDiktator coalition, which is made up of nine organisations, says it is appalled that the government has bulldozed through the NSC Bill and gazetted it as law “despite the very serious concerns raised by many parties including the Conference of Rulers, who had requested in February 2016 that the Bill be ‘refined’”.

The attorney-general must disclose whether any provisions were scrutinised after he met the Rulers in February, and say why no amendments were made, the coalition says.

The coalition describes the gazetting of the legislation as an act of defiance against the Council of Rulers, the people, and the federal constitution.

President of the opposition Parti Keadilan Rakyat (People’s Justice Party or PKR), Wan Azizah Wan Ismail (pictured left), described the gazetting of the NSC Bill into law without obtaining royal assent as “an unprecedented and dangerous development”.

The ruling Barisan Nasional coalition had shown grave disrespect to the Rulers, and ignored their constitutional role, she said.

Wan Azizah called on the prime minister and his government to repeal the NSC Act at the next session of parliament.

No limits on security area

Under the new Act, the security forces will be able to take temporary possession of any land, any building or part of a building, or any movable property within a designated security area, and even destroy “certain unoccupied buildings”.

The director of operations will be able to evacuate people from a security area and resettle them in an area he determines.

The security declaration can be renewed an infinite number of times and there are no limits as to the size of the area in question. A large part or even the whole of Malaysia could be declared a security area.

The king would no longer be required to declare an emergency before the government implements its special powers.

‘A dark and sinister chapter’

Wan Saiful Wan Jan said in his statement yesterday: “The failure of the Dewan Rakyat and Dewan Negara to reject this Act will be remembered as a dark and sinister chapter in our nation’s history.

“It is important to remember that this piece of security legislation, which allows for extensive curtailing and further restrictions on constitutionally guaranteed civil liberties and freedoms had very little legislative scrutiny and almost zero public consultation.”

The Council of Rulers has concerns that remain unaddressed, Wan Saiful says. “We must break our silence and ask why the government was insistent in pushing this through despite the lack of an approval from the Yang di-Pertuan Agong.”

Lawyers are now considering what actions could be taken to oppose the NSC legislation, including a possible legal challenge on the basis that the Act is unconstitutional.

The human rights NGO Suara Rakyat Malaysia (Voice of the People, or SUARAM) says parliamentary representatives have failed to fulfil their oath to protect the rights of Malaysians.

“As the representatives of the peoples of Malaysia, they have clearly turned their back on the oath they have taken when they failed to safeguard the rights of Malaysians and wilfully participated in the destruction of these rights,” SUARAM’s executive director, Sevan Doraisamy, said after the senate vote.

The NSC Bill would render null and void the rights and liberties guaranteed to all Malaysians under the federal constitution and the Universal Declaration of Human Rights, Sevan said.

Ambiga Sreenevasan, speaking on behalf of the #TakNakDiktator campaign coalition, says the NSC legislation represents a leap towards a dictatorship and a military police state with little or no safeguards.

“The NSC law is clearly unconstitutional and a grave abuse of power. Malaysia does not need such a law, which goes against all principles of democracy and undermines the rule of law in the country.”

Writing in the Malaysian Insider after the senate vote, Sreenevasan said it would have been in the interests of the nation to have had further discussion about the NSC Bill, “yet the government remained stubborn and did not even show a willingness to listen to reason”.

Sreenevasan wrote: “What we had was a government acting in haste, willing to overlook clear constitutional and legal impediments to the Bill, and taking the attitude that they know best.

The NSC Bill, Sreenevasan says, “gives absolute power to the prime minister to declare somewhere a security area. Once a “security area” is declared, she says, it becomes a legal black hole.

“Anything can be done there by the security forces, including arrest, seizure of property and even killing, without any of the usual legal safeguards.”

Under the Bill, Sreenevasan says, the security council’s role is merely advisory, and the prime minister is not obliged to take others’ advice. “Furthermore, the prime minister, without reference to the council, may in his sole discretion extend the declaration ad infinitum.”

If one studies the Bill carefully, it appears to provide checks and balances, Sreenevasan says, “but, on closer scrutiny, we can see they are anything but that”.

Giving one person all powers over security with no checks and balances could compromise security rather than enhancing it, Sreenevasan says.

“The net effect is that the NSC Bill gives absolute power to the prime minister to decide if there is a security threat, including what may be covered in the nebulous wordings of ‘any other interest of Malaysia’.”

Opponents of the NSC Bill say it hands over to the prime minister powers that are currently held by the defence and home ministers. Also, while the word “emergency” is not specifically used in the new Act, it effectively grants Najib similar powers to those now held by the Agong, who was previously the only person empowered, under the constitution, to declare a state of emergency.

More than 22,000 Malaysians have signed a petition against the passing of the NSC Bill.

Many senators pointed to flaws in the legislation, but it was passed nevertheless.

Among the concerns expressed in the senate were the lack of a definition of national security in the legislation, and the “wide and unlimited” functions of the security council.

Senator Mat Johari asked why the powers granted to security personnel under Clause 34, enabling the “reasonable use of force”, were so subjective and wide.

Senator Norliza Abdul Rahim pointed out that there were no checks and balances in the section of Clause 18 that refers to the declaration of a security area.

Many observers consider the legislation to be a blatant power grab by Najib, who is accused of siphoning off huge amounts of public money for his own use and has faced repeated calls for his resignation.

“This bill, rushed through in the way that it was with no checks and balances, is nothing more than a grab for absolute power,” Sreenevasan has said.

Ignatius said the NSC Bill was more about “consolidating power, silencing dissent, stifling the opposition and intimidating the people” than anything else.

Najib (pictured left) said in October last year that further legislation was needed to protect Malaysia from terrorist threats. He said a new Act was necessary to create the NSC legislatively, as was done in several other countries. NSC “transformation measures”, he said, would strengthen the council and enable better coordination of national security policy.

The government said the new legislation didn’t contravene the federal constitution and drew a comparison between the Malaysian NSC Bill and the British National Security Council, chaired by Britain’s prime minister. However, opponents of the legislation point out that the British NSC is a Cabinet committee for the formulation of policy, not an enabling legislation with draconian powers like the NSC Act.

(The security council would also include the deputy prime minister.)

The organisations spearheading the #TakNakDiktator campaign are Lawyers for Liberty; Amnesty Malaysia; SUARAM; HAKAM; the Coalition for Clean and Fair Elections (Bersih); the Centre to Combat Corruption and Cronyism, known as C4; and Institut Rakyat, the policy think-tank established by the PKR.